Wal-Mart v. Dukes ruling is out of sync with 21st-century sex discrimination

In Wal-Mart v. Dukes, the Supreme Court set a dangerous precedent when it ruled that the women in the class action suit could not prove a common culture of sex discrimination. But sexism is no longer written in official policy. It's engrained in culture.

The court decided 5-4 that up to 1.5 million former and current female employees couldn’t file suit against Wal-Mart together as a class because there was scant evidence of institutionally sanctioned or organized discrimination by the company. But women make up over 65 percent of hourly employees at Wal-Mart, and only 34.5 percent of managers. In other words, Wal-Mart – like so many of America’s biggest businesses – has a gender and leadership problem.

In his majority opinion, however, Justice Antonin Scalia argued that numbers like these, coupled with stories about the widespread exclusion of and humiliation of women, didn’t constitute discrimination because, well, Wal-Mart has a non-discrimination policy.

Further, he wrote that Wal-Mart’s policy of allowing discretion by local supervisors in employment practices – importantly, uncharacteristic of the corporation’s overall micromanaging style – was “just the opposite of a uniform employment practice that would provide the commonality needed for a class action; it is a policy against having uniform employment practices.”

A lesson in 21st century discrimination

Apparently Mr. Scalia needs a lesson in 21st century discrimination. This is a time in which discrimination of all kinds doesn’t usually advertise itself on “white’s only” water fountain signs and “woman wanted” ads for secretary positions in Sunday’s neighborhood newspaper. It’s a time when racism, sexism, and other forms of discrimination are entrenched in our culture – insidious, covert, often subtle. It’s a time when the distribution of power – money, jobs, influence – is almost entirely dependent on informal relationships born of a still alarmingly segregated society.

It’s not company rules that most brave working women have to challenge these days; it’s informal and widespread exclusion. As Rinku Sen wrote in ColorLines magazine: “Certainly, there has been some blatantly sexist behavior among Wal-Mart managers…but mostly, Wal-Mart’s system runs on silence.”

At Wal-Mart, as with so many American companies, men speak the private language of promotion and negotiation, while women are left confused as to where the pipeline to power and new opportunities even starts. With women still taking on the majority of caretaking responsibilities, their second shift often prevents them from doing the kind of after-hours bonding necessary, were their male managers even willing to bring them into the “inner circle.”

Culture is hard to legislate, but it's a real factor

Culture, of course, is harder to discuss, legislate, and change than policies, but that doesn’t mean that our nation’s highest court is off the hook. As Justice Ruth Bader Ginsberg pointed out in her dissenting opinion in this, the largest attempted class action suit ever: “Managers, like all humankind, may be prey to biases of which they are unaware. The risk of discrimination is heightened when those managers are pre-dominantly of one sex, and are steeped in a corporate culture that perpetuates gender stereotypes.”

It’s not surprising that all three female judges on the court, all of whom have most likely endured various forms of socially sanctioned discrimination in the past, ruled in favor of the Wal-Mart women. Ms. Ginsberg built a career, in part, prosecuting sex discrimination cases.

The most disturbing danger here is not that Scalia and the other four judges that sided with him seem to deny the continued existence of “good old boy” networks as forms of widespread discrimination that company policies can condone or mitigate. The most disturbing danger is that the Supreme Court has now created a precedent whereby plaintiffs, just to move past the pleading stage, must actually prove common harm according to evidentiary standards that are out of sync with the reality of how contemporary sexism most often functions in the workplace. Joanne Bamberger, a blogger at PunditMom and a lawyer, by training, calls this ruling “the most activist judicial move I’ve seen in a long time.”

Sexism has gone 'underground'

The irony, of course, is that the feminist movement has done such a good job fighting against institutional sexism, that it is now faced with an enemy that has – in a sense – gone underground. It’s unlikely that male managers at Wal-Mart, even in conservative regions of the country, would feel entitled to advertise their preferences for promoting men, but they still feel just fine inviting the guys from work to Hooters for a managers’ meeting – as real life evidence from the plaintiffs illustrated.

Feminists are famous for arguing that the personal is political; in this case, the cultural is pivotal. It’s a shame some of our nation’s most esteemed judges were apparently not able to recognize that.